Baca Gardening and Landscaping Inc v. Prizm Vinyl Corporation et al
Filing
12
ORDER by Judge Virginia A. Phillips, granting MOTION to Dismiss Case 9 and transfers the case to the District Court in the District of New Mexico. (See document for further specifics) (Made JS-6. Case Terminated.) (Attachments: # 1 Letter CV-22) (mrgo)
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1 2 3 4 5 6 7 8 9 10 11 BACA GARDENING AND ) LANDSCAPING, INC., a ) 12 California Corporation, ) ) 13 Plaintiff, ) ) 14 v. ) ) 15 PRIZM VINYL CORPORATION, ) a Delaware corporation, ) 16 EDWARD SHAPIRO, ) individually and DOES 1- ) 17 10, inclusive, ) ) 18 Defendants. ) ________________________ ) 19 20 Case No. EDCV 08-1328-VAP (JCx) [Motion filed on October 8, 2008] ORDER GRANTING MOTION TO DISMISS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
The Court has received and considered the papers
21 filed in support of, and in opposition to, Defendant 22 Prizm Vinyl Corporation and Edward Shapiro's Motion to 23 Dismiss Pursuant to Federal Rule of Civil Procedure 24 12(b)(2). The matter is appropriate for resolution The 25 without a hearing pursuant to Local Rule 7-15. 27 a.m., is VACATED.
26 hearing on the matter, set on November 17, 2008 at 10:00 For the following reasons, the Court 28 GRANTS Defendants' Motion to Dismiss.
1 2 A. 3
I. BACKGROUND Factual Allegations Plaintiff Baca Gardening and Landscaping, Inc. is a (See Compl. at ¶ 1.)
4 California corporation with its principal place of 5 business in Fontana, California. 6 Defendant Prizm Vinyl Corporation is a Delaware 7 corporation with its principal place of business in York, 8 Pennsylvania. 9 3(a)(ii).) (See Compl. at ¶ 2; Not. Removal at ¶ Defendant Edward Shapiro resides in
10 Pennsylvania, is a citizen of Pennsylvania, and is 11 alleged to be the "managing agent and/or principal of 12 Defendant Prizm." 13 3(a)(iii).) 15 16 After viewing Defendants' Internet website, Plaintiff (See Opp'n at 3; Baca Decl. at ¶ 3.) The 17 contacted Defendants by telephone to purchase vinyl 18 fencing. 19 parties reached an agreement about the quantity and price 20 of the fencing Plaintiff would purchase. 21 ¶¶ 10-11.) 23 Opp'n at 4.) 24 25 Shortly after installation, the fencing began "to (Compl. at ¶ 13.) Plaintiff contacted 26 warp, bend, bow, distress, move and otherwise become 27 defective." 28
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(Compl. at ¶¶ 4-5; Not. Removal at ¶ (See Compl. at ¶ 9.)
Defendants are retail sellers of vinyl
14 fencing products.
(See Compl. at (See
Defendants shipped the fencing to New Mexico,
22 where it was installed on Plaintiff's property.
1 Defendants on several occasions to complain about the 2 defects. (Id. at ¶¶ 15-17.) After the fence was 3 inspected in January 2008, Defendants assured Plaintiff 4 that the defective fencing would be replaced by 5 Defendants. 7 8 B. 9 Procedural History On August 26, 2008, Plaintiff Baca Gardening and (Id.) Defendants have not honored "their (Id. at ¶ 17.) 6 assurances, promises, and warranties."
10 Landscaping, Inc. filed a Complaint in the Superior Court 11 of California, County of San Bernardino, naming as 12 Defedants Prizm Vinyl Corporation and Edward Shapiro. 13 (See Compl.) The Complaint listed the following claims: 14 (1) "Breach of Contract;" (2) "Breach of Implied 15 Warranties;" (3) "Breach of Implied Warranties (Mag16 Moss);" (4) "Breach of Express Warranties;" (5) "Breach 17 of Express Warranties (Mag-Moss);" (6) "Breach of Express 18 Warranties (Comm. Code § 2313);" (7) "Breach of Express 19 Warranties (Song-Beverly)." (Id.) Defendants removed 20 the case to the United States District Court, Central 21 District of California, on September 29, 2008. 22 23 Defendants filed a Motion to Dismiss Pursuant to 24 Federal Rule of Civil Procedure 12(b)(2) ("Motion") on 25 October 8, 2008 and the Declarations of Prizm Vinyl 26 Corporation ("Prizm Decl.") and Edward Shapiro ("Shapiro 27 Decl."). 28
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Plaintiff filed Opposition ("Opp'n") on
1 November 3, 2008 and the Declaration of Joe Baca ("Baca 2 Decl."). 4 5 6 II. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(2) governs "In order Defendants filed a Reply on November 10, 2008 3 and the Declaration of Kristen Hurd ("Hurd Decl.").
7 dismissal for lack of personal jurisdiction.
8 to exercise personal jurisdiction over a nonresident 9 defendant in a case presenting a federal question, the 10 district court must first determine that 'a rule or 11 statute potentially confers jurisdiction over the 12 defendant and then conclude that asserting jurisdiction 13 does not offend the principles of Fifth Amendment due 14 process.'" Doe I v. Unocal Corporation, 248 F.3d 915, 15 921-22 (9th Cir. 2001), citing Go-Video, Inc. v. Akai 16 Electric Co., Ltd., 885 F.2d 1406, 1413 (9th Cir. 1989). 17 18 19 Due process requires that nonresident defendants have 20 certain "minimum contacts" with the forum state so that 21 the exercise of jurisdiction does not offend traditional 22 notions of fair play and substantial justice. 23 v. Washington, 326 U.S. 310 (1945). Int'l Shoe "[I]t is essential
24 in each case that there be some act by which the 25 defendant purposefully avails itself of the privilege of 26 conducting activities within the forum State, thus 27 invoking the 28
4
1 benefits and protections of its law." 2 357 U.S. 235, 253 (1958). 3 4
Hanson v. Denckla,
A court may exercise personal jurisdiction over a Doe v.
5 nonresident defendant generally or specifically.
6 Am. Nat'l Red Cross, 112 F.3d 1048, 1050 (9th Cir. 1997). 7 Specific jurisdiction exists when: (1) the defendant 8 purposefully avails himself of the "privilege of 9 conducting activities in the forum," (2) the claims 10 arises "from the defendant's forum-related activities," 11 (3) is reasonable. See Data Disc, Inc. V. Sys. Tech. 12 Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). 13 Alternatively, a court has general jurisdiction when the 14 defendant's activities within a state are "substantial" 15 or "continuous and systematic." 16 17 The plaintiff has the burden to establish a court's Cubbage v. 18 personal jurisdiction over a defendant. 20 denied, 470 U.S. 1005 (1985). 22 over the defendant. Id.
19 Merchent, 744 F.2d 665, 667 (9th Cir. 1984), cert. The plaintiff need only 21 demonstrate facts that if true would support jurisdiction Ballard v. Savage, 65 F.3d 1495, 23 1498 (9th Cir. 1995) (citations omitted); see also AT&T 24 v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th 25 Cir. 1996) (where trial court rules on jurisdictional 26 issue based on affidavits and discovery materials without 27 holding evidentiary hearing, plaintiff need only make 28
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1 prima facie showing).
"[C]onflicts between the facts
2 contained in the parties' affidavits must be resolved in 3 [plaintiffs'] favor for purposes of deciding whether a 4 prima facie case for personal jurisdiction exists." 5 (Citations omitted.) 6 7 8 III. DISCUSSION Defendants move the Court to dismiss Plaintiff's (See Mot.) (See Id.
9 Complaint for lack of personal jurisdiction over 10 Defendants, who are out of state residents. 11 Plaintiff opposes Defendants' Motion and argues the Court 12 has specific jurisdiction over the Defendants.1 13 Opp'n.) In the alternative, Plaintiff argues the Court
14 should allow the Plaintiff to conduct limited discovery 15 about jurisdiction or transfer the case to another 16 District Court. 17 18 A. 19 Specific Jurisdiction As stated above, Plaintiff has the burden of showing (Id.)
20 the Court has specific jurisdiction over the Defendants 21 by demonstrating the following: (1) the Defendants have 22 availed themselves purposefully of the benefits and 23 protections of the laws of the forum state; (2) 24 Plaintiff's claims arise out of or relate to Defendants' 25 26 The Plaintiff argues only that the Court has specific jurisdiction over Defendants, not general 27 jurisdiction. (See Opp'n at 6.) Thus, the Court limits 28 its discussion to specific jurisdiction.
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1 forum-related activities; and (3) the Court's exercise of 2 personal jurisdiction over Defendants is reasonable. 4 801-02 (9th Cir. 2004). 6 jurisdictional facts." 7 1361 (9th Cir. 1990). 8 9 10 1. Purposeful Availment Defendants argue they have not availed themselves (See Mot. at 9.) According to See 3 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, Without an evidentiary hearing, Sher v. Johnson, 911 F.2d 1357, 5 "the plaintiff need only make a prima facie showing of
11 purposefully of the benefits or protections of the laws 12 of California. 13 Defendants, Plaintiff, located in California, entered 14 into a contract with Defendants2 over the telephone, 15 followed by a written agreement, for the purchase of 16 vinyl fencing. (Id. at 10.) The fencing was shipped to 17 Plaintiff in Pennsylvania; Plaintiff arranged to have the 18 fencing transported from Pennsylvania to Plaintiff's 19 property in New Mexico, where the fencing was installed. 20 (Id.) Further, Defendants argue their written agreement 21 with Plaintiff stated the contract was to "be construed 22 and accepted in accordance with the laws of the 23 Commonwealth of Pennsylvania." 24 25 26 Defendant principal place 27 Pennsylvania." 28 resident of and
2
(Id. at 3.)
Finally,
Prizm is a "Delaware corporation with its of business located in York, (Mot. at 2.) Defendant Shapiro is "a is domiciled in Pennsylvania." (Id.)
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1 Defendants argue, "[t]he transaction at issue here was 2 but a one-time 3 contract for the sale of a good which has only an 4 insignificant connection to California because it is 5 where the purchaser happened to be located, but otherwise 6 created no "substantial connection" or ongoing obligation 7 there." 8 9 Plaintiff argues Defendants have availed themselves 10 purposefully of California's benefits and protections. 11 Plaintiff alleges Defendants held themselves out to have 12 a "California representative," that Defendants made 13 several telephone calls and sent numerous facsimiles to 14 Plaintiff in California, and that Defendants sent sample 15 fencing to Plaintiff in California. (See Opp'n at 7-8.) 16 According to Plaintiff, Defendants have "benefitted 17 economically by dealing with a California resident and 18 benefitted from California through entering into 19 contracts with [Plaintiff], which would be enforceable 20 under California law." 21 22 Plaintiff also argues Defendants have purposefully 23 availed themselves of the benefits and protections of 24 California's laws because the contract documents were 25 sent by facsimile transmission to and executed by 26 27 28
8
(Id. at 10.)
(Id. at 8.)
1 Plaintiff in California and Plaintiff suffers the damage 2 from the alleged breach in California.3 3 4 As this is a contract dispute, the Court must examine 5 whether the Defendants "purposefully avail[ed] 6 [themselves] of the privilege of conducting activities or 7 consummat[ed] a transaction in the forum." Yahoo! Inc. 8 v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 9 F.3d 1199, 1206 (9th Cir. 2006) (citation omitted) 10 (internal quotations omitted). Generally, the fact that 11 a nonresident entered into a contract with a forum 12 resident is not a sufficient minimum contact, alone, with 13 the forum state to satisfy specific jurisdiction. See 14 Gray & Co. v. Firstenberg Machinery Co, 913 F.2d 758, 760 15 (9th Cir. 1990); Boschetto v. Hansing, 539 F.3d 1011, 16 1019 (9th Cir. 2008). In fact, the Supreme Court has 17 stated, a "contract is but an intermediate step to 18 serving to tie up prior business negotiations with future 19 consequences which themselves are the real object of the 20 business transaction." 22 23 24 25 As an initial matter, it is not sufficient to demonstrate purposeful availment that Plaintiff resides 26 in California and suffers the effects of Defendants' 27 alleged breach of contract there. See Casualty Assurance Risk Ins. Brokerage Co. v. Dillon, 976 F.2d 596, 601 (9th 28 Cir. 1992).
9
3
(Id. at 9.)
Burger King Corp. v. Rudzewicz,
21 471 U.S. 462, 478-79 (1985).
1
Jurisdiction is not established automatically because
2 the forum state was the place of contracting, the place 3 of performing, or because the breach caused harm in the 4 forum state; viewing the contract as an intermediate 5 step, the Court must weigh the following factors: (1) 6 prior negotiations between the parties; (2) contemplated 7 future consequences; (3) course of dealings between the 8 parties; and (4) whether or not a choice of law provision 9 was included in the contract. 10 11 Here, the parties present no evidence of prior In fact, the parties demonstrate this (See Mot. at 2-3; Opp'n at 3-4.) 12 negotiations. Id. at 479.
13 contract was their first and only instance of negotiating 14 with one another. 16 analysis. 17 18 Furthermore, the parties present no evidence of an 19 intent to contract in the future or of the future 20 consequences of entering into the contract at issue in 21 this case. 23 24 As to the third factor, the course of performance It consisted of (See Opp'n at 325 between the parties was very limited. 27 visiting Defendants' Internet website. 28
10
15 Thus, this factor does not weigh heavily in the Court's
Thus, this factor also does not weigh heavily
22 in the Court's analysis.
26 Plaintiff contacting the Defendants by telephone, after
1 4.)
According to Plaintiff, several telephone calls
2 between Plaintiff and Defendants' employees took place 3 and Defendants sent Plaintiff a sample of the fencing 4 before the parties entered into the contract. (Id.) 5 Based on Plaintiff's proffer, Defendants knew or should 6 have known they were negotiating with a California 7 resident, given the phone number and address to which 8 they directed their communications. 9 of finding purposeful availment. 10 11 As to the final factor, Defendants allege there was a Defendants submit a 12 choice of law term in the contract. This weighs in favor
13 contract as an exhibit to the Motion; in the contract, it 14 states it is to "be construed and accepted in accordance 15 with the laws of the Commonwealth of Pennsylvania." 16 (Mot. at 3.) 17 18 Plaintiff objects to Defendants' exhibit, claiming it (See Opp'n at 11.) 19 never received it or was presented with it, and it does 20 not bear Plaintiff's handwriting. 21 The Court sustains Plaintiff's objection because the 22 document itself is not authenticated properly by any 23 declaration submitted by Defendants. Defendants' 24 Declaration of Prizm Vinyl Corporation, signed by Edward 25 Shapiro, does present testimony, however, that "[t]he 26 terms and conditions of Plaintiff's purchase of the 27 fencing set forth that the purchase was to be construed 28
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1 and was accepted in accordance with the laws of the 2 Commonwealth of Pennsylvania." 3 18.) (See Prizm Decl. at ¶ The Court considers this as evidence that there was
4 a choice of law provision dictating Pennsylvania law be 5 applied to the 6 contract. 7 availment. 8 9 Based on the totality of the circumstances, the Court 10 finds Defendants did not avail themselves purposefully of 11 the benefits and protections of the laws of California 12 simply by responding to one inquiry by a California 13 resident and subsequently negotiating a contract with 14 that resident. See Boschetto, 539 F.3d at 1019. 15 Plaintiff offers no evidence that Defendants sought out 16 or induced it to enter into a contract; rather, Plaintiff 17 presents evidence that it initiated the contact, based on 18 finding and reviewing Defendants' Internet website,4 not 19 attributable to any act of Defendants. 20 4; Baca Decl. at ¶¶ 2-7.) 21 22 23 24 Plaintiff does not argue that Defendants' Internet 25 website created personal jurisdiction over the Defendants. Also, Plaintiff does not argue whether or 26 not Defendants' Internet website is passive or active. Thus, the Court does not consider whether Defendants' 27 Internet website, alone, could confer specific personal jurisdiction in this case. See, e.g., Int'l L.P. v. 28 Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998).
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4
This weighs against finding purposeful
(See Opp'n at 3-
1
In Gray & Co. v. Firstenberg Machinery Co., an Oregon 913 F.2d 758, 759 (9th Cir.
2 resident called a California company to ask about 3 purchasing used equipment. 4 1990). Based on the telephone call, the company sold to Id. The company had no other
5 the Oregon resident equipment located in Illinois, on an 6 "as is, where is" basis. 7 relationship to or contact with Oregon and the agreement 8 did not contemplate a continuing relationship between the 9 parties. Id. at 760-61. There, the Ninth Circuit found Id. 10 the defendant's contacts with Oregon to be "attenuated" 11 and insufficient to establish purposeful availment. 12 at 761. 13 14 Gray & Co. controls here. As in Gray & Co., 15 Plaintiff has offered no evidence that Defendant has any 16 contact with California, save its limited communications 17 and negotiations with Plaintiff about entering into a 18 contract, solicited by Plaintiff. Plaintiff has also 19 failed to show the parties contemplated or agreed to a 20 continuing relationship, besides the single vinyl fencing 21 contract. Defendants' contact with California is too See Gray 22 attenuated to demonstrate purposeful availment.
23 & Co., 913 F.2d at 761; see also Kerry Steel, Inc. v. 24 Paragon Industries, Inc., 106 F.3d 147, 151 (6th Cir. 25 1997) (finding no purposeful availment when defendant had 26 one isolated transaction with plaintiff, initiated over 27 the telephone by plaintiff in forum state, where the 28
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1 parties came to agreement, facsimile was sent confirming 2 the agreement, and plaintiff sent payment). 3 4 Plaintiff has not made out a prima facie case that 5 Defendants "expressly aimed [their] acts at California." 6 See Schwarzenegger, 374 F.3d at 807; cf. Keeton v. 7 Hustler Magazine, Inc., 465 U.S. 770, 774-75 (1984) 8 (finding purposeful availment where defendant published 9 magazines in Ohio and circulated them in the forum state 10 of New Hampshire); Mattel, Inc. v. MCA Records, Inc., 296 11 F.3d 894, 899 (9th Cir. 2002) (finding purposeful 12 availment where defendant distributed its European 13 products in the forum state of California); World-Wide 14 Volkswagen v. Woodson, 444 U.S. 286, 297-98 ("forum State 15 does not exceed its powers under the Due Process Clause 16 if it asserts personal jurisdiction over a corporation 17 that delivers its products into the stream of commerce 18 with the expectation that they will be purchased by 19 consumers in the forum State"); Plant Food Co-Op v. 20 Wolfkill Feed & Fertilizer Corp., 633 F.2d 155, 158-60 21 (9th Cir. 1980) (Canadian distributor that shipped 22 defective product to Montana may be subjected to personal 23 jurisdiction there). 24 25 Plaintiff has not satisfied its burden of 26 demonstrating Defendants' purposeful availment of the 27 benefits and protections of the laws of California. 28
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1 2 3
2.
Claims Arising Out Of Or Relating To Defendants' Forum-Related Activities
The Ninth Circuit employs the "but for" causation
4 analysis to determine whether a claim arises out of the 5 defendant's forum-related activities; the plaintiff must 6 show, but for the defendant's forum-related activities, 7 plaintiff would not have been harmed. See Doe v. Unocal 8 Corp., 248 F.3d 915, 924 (9th Cir. 2001); Ballard v. 9 Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). 10 11 Defendants argue they have no forum-related (See Mot. at 11.) In the 12 activities, thus this prong of the specific jurisdiction 13 test cannot be met. 14 alternative, Defendants argue none of their activities 15 relating to California "cause[d] Plaintiff to suffer any 16 damages." 17 18 Plaintiff argues this prong is met. According to 19 Plaintiff, but for Defendants' alleged breach of their 20 contract, Plaintiff would not have suffered any damage. 21 (See Opp'n at 8.) 22 23 Applying the Ninth Circuit's "but for" test, the 24 Court must ask whether or not Plaintiff's alleged injury 25 could be attributed to Defendant's forum-related 26 activities. 28
15
(Id.)
First, it is necessary to define Defendants' Here, Defendants' only alleged
27 forum-related activities.
1 contact with California is their communications and 2 negotiations with Plaintiff, located in California, and 3 subsequently entering into a contract with Plaintiff. 4 Thus, Defendants' relevant activities only relate to the 5 formation of the contract with Plaintiff. 6 7 Plaintiff does not allege injury from the formation Plaintiff does not allege that Defendants Plaintiff does not allege 8 of the contract, but only the alleged breach of that 9 contract. 10 engaged in any forum-related activities following the 11 formation of the contract. 12 Defendants breached the contract in California; Plaintiff 13 simply felt the damage resulting from the alleged breach, 14 in California. Thus, Plaintiff has failed to demonstrate 15 how Defendants' forum-related activities, relating to the 16 formation of the contract, could have had a causal 17 connection to Plaintiff's alleged injury from the alleged 18 breach of contract. 19 20 21 3. Reasonableness Plaintiff has failed to satisfy its burden on the
22 first two prongs of the specific jurisdiction test, thus 23 the Court need not determine whether or not the exercise 24 of jurisdiction is nonetheless reasonable here. See 25 Menken v. Emm, 503 F.3d 1050, 1057 (9th Cir. 2007) ("If 26 the plaintiff fails to satisfy either of [the first two 27 specific jurisdiction] prongs, personal jurisdiction is 28
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1 not established in the forum state" (citation omitted)). 2 In any event, given the Court's findings on the first two 3 specific jurisdiction prongs, it would be unreasonable 4 for the Court to exercise specific jurisdiction over the 5 Defendants in this case. 7 8 B. 9 10 Alternative Request For Limited Jurisdictional Discovery Given the Court's determination that there is no See id.; Sinatra v. National 6 Enquirer, Inc., 854 F.2d 1191, 1198-99 (9th Cir. 1988).
11 specific jurisdiction over the Defendants, the Court sees 12 granting Plaintiff's request for limited jurisdictional 13 discovery to be futile. Plaintiff fails to specify the 14 discovery it would propound and how that discovery would 15 lead to information that would help it overcome the 16 jurisdictional deficiencies discussed above. 17 Plaintiff's request is denied. 18 19 C. 20 Alternative Request to Transfer Plaintiff requests that the Court, in lieu of Thus,
21 dismissing the case for lack of personal jurisdiction 22 over Defendants, transfer the case to a district that 23 would have personal jurisdiction over them, namely a 24 District Court that sits in a judicial district that 25 includes Santa Fe, New Mexico. (See Opp'n at 12.) 26 Plaintiff voices concerns that, should the Court dismiss 27 the case rather than transfer it and Plaintiff would be 28
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1 forced to re-file the case in another jurisdiction, 2 Plaintiff's claims would be barred by applicable statutes 3 of limitations. (Id.) Also, Plaintiff expresses 4 concerns about incurring burdensome financial costs by 5 bringing the claims in a Pennsylvania court; it would be 6 easier for Plaintiff to prosecute the case from a 7 location closer to California. 8 (Id.) Defendants do not object to the transfer of the case; (See Reply at 4.)
9 Defendants urge the Court to transfer the matter to the 10 Commonwealth of Pennsylvania. 11 Defendants point out that Plaintiff would have four 12 years, under 42 Pa. C.S.A. § 5525, to bring the contract 13 claims in Pennsylvania. 14 15 Transfer to another District Court to cure a personal 16 jurisdiction deficiency is permissible when (1) a court 17 exists in which the case could have been brought 18 originally and (2) it is in the interest of justice. 20 Cir. 1992). See 19 28 U.S.C. § 1631; Clark v. Busey, 959 F.2d 808, 812 (9th Although jurisdiction would be proper in the 21 Commonwealth of Pennsylvania, Defendants' principal place 22 of business, the Court considers Plaintiff's arguments 23 about whether to transfer the case to the District of New 24 Mexico, in light of Plaintiff's arguments about it being 25 less financially burdensome to prosecute the case in New 26 Mexico. 27 28
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(See id. at n.1.)
1
Plaintiff's case could have been brought in the
2 District of New Mexico; that Court has subject matter 3 jurisdiction, on the basis of diversity jurisdiction, 4 over Plaintiff's claims, just as does this Court. 5 personal jurisdiction over the Defendants may be 6 satisfied in that forum. According to Defendants, 7 "[b]ecause the fencing was delivered to Plaintiff in 8 Pennsylvania and shipped to and installed in New Mexico, 9 any further obligations between the Plaintiff and Prizm 10 would be in either Pennsylvania or New Mexico." 11 Mot. at 10.) (See Defendants' argument could be construed as Also,
12 conceding that Plaintiff's claims could be brought in New 13 Mexico because Defendants have sufficient minimum 14 contacts in that state for personal jurisdiction to be 15 proper. 16 17 At the very least, Defendants knew, at the time of 18 contracting with Plaintiff, that Plaintiff was purchasing 19 the materials to be installed in its property in New 20 Mexico; Defendants arranged with Plaintiff to have the 21 materials sent through a common carrier to New Mexico 22 from Pennsylvania. (See Mot. at 3.) Defendants' acts See, e.g., 23 satisfy the inquiry into whether personal jurisdiction 24 over Defendants in New Mexico is proper. 25 Plant Food Co-Op, 633 F.2d at 158-60. 26 27 28
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Defendants offer no argument about why the Court
2 should transfer the case to the Commonwealth of 3 Pennsylvania instead of to New Mexico, except noting that 4 Plaintiff has four years to bring its contract claims in 5 Pennsylvania. 6 /// 7 /// 8 /// 9 /// 10 11 In the interest of justice and after consideration of 12 the parties' arguments, the Court transfers this case to 13 the federal District Court in the District of New Mexico. 14 15 16 IV. CONCLUSION For the foregoing reasons, the Court GRANTS (See Reply at 4, n.1.)
17 Defendants' Motion to Dismiss Pursuant to Federal Rule of 18 Civil Procedure 12(b)(2) and transfers the case to the 19 District Court in the District of New Mexico. 20 21 22 23 24 25 26 27 28
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Dated: November 12, 2008 VIRGINIA A. PHILLIPS United States District Judge
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